Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 347th District Court of Nueces County, Texas.
Justices Rodriguez, Contreras, and Benavides.
M. BENAVIDES, JUSTICE.
termination of parental rights involves fundamental
constitutional rights and divests the parent and child of all
legal rights, privileges, duties and powers normally existing
between them." In re L.J.N., 329 S.W.3d 667,
671 (Tex. App.-Corpus Christi 2010, no pet.) (citing
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)).
While parental rights are of a constitutional magnitude, they
are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.
2002). "A parental rights termination proceeding
encumbers a value 'far more precious than any property
right' and is consequently governed by special
rules." In re E.R, 385 S.W.3d 552, 555 (Tex
2012) "Termination of parental rights, the total and
irrevocable dissolution of the parent-child relationship,
constitutes the 'death penalty' of civil cases"
In re KML, 443 S.W.3d 101, 121 (Tex 2014) (Lehrmann, J,
concurring). "Whereas most termination cases result from
[an investigation] and involve the Department [of Family and
Protective Services], which has standards and guidelines to
follow prior to attempting termination, this case was not
[referred to the Department] and is a private dispute."
In re N.L.D., 412 S.W.3d 810, 822 (Tex.
App.-Texarkana 2013, no pet.).
may order the termination of a parent-child relationship if
it shown by clear and convincing evidence that a parent has
met at least one of the statutory factors listed in section
161.001 of the family code, coupled with an additional
finding by clear and convincing evidence that termination is
in the child's best interest. See Tex. Fam. Code
Ann. § 161.001(b)(1)-(2) (West, Westlaw through 2017
R.S.); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002)
(noting the two-prong test in deciding parental termination
and that one act or omission of conduct satisfies the first
prong); In re E.M.N., 221 S.W.3d 815, 820-21 (Tex.
App.-Fort Worth 2007, no pet.). "Clear and convincing
evidence" is defined as the "measure or degree of
proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations
sought to be established." Tex. Fam. Code Ann. §
101.007 (West, Westlaw through 2017 R.S.). "This
intermediate standard falls between the preponderance of the
evidence standard in civil proceedings and the reasonable
doubt standard of criminal proceedings." In re
L.J.N., 329 S.W.3d at 671. This heightened standard of
review is mandated not only by the family code, see
Tex. Fam. Code Ann. § 161.001, but also the Due Process
Clause of the United States Constitution. In re E.
N.C. , 384 S.W.3d 796, 805 (Tex. 2012) (citing
Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)).
"It is our obligation to strictly scrutinize termination
proceedings and strictly construe the statute in favor of the
parent." In re L.J.N., 329 S.W.3d at 673.
accelerated appeal concerns an order terminating appellant
LMC's (Mother) parental rights to CGB (Child), her
11-year-old daughter. See Tex. R. App. P. 28.4. By
three issues, Mother asserts that: (1) the evidence was
factually and legally insufficient to support termination of
her parental rights; (2) she was not effectively represented
by counsel during the proceedings; and (3) the relief granted
by the trial court exceeded the relief requested by the
appellees, TB's (Father) and MLB's (Paternal
Grandmother) pleadings. We reverse and remand.
was born on July 14, 2005. Mother and Father divorced on May
26, 2009. Both parents were appointed joint managing
conservators, with Mother designated as the parent entitled
to determine the Child's residence. On May 5, 2010,
Paternal Grandmother filed a petition in intervention, asking
to be appointed sole managing conservator of Child and
requesting that Mother be ordered to pay child support.
Paternal Grandmother alleged Mother was exhibiting behavior
outside of her workplace that caused an involuntary mental
commitment and that Mother had been hospitalized for mental
illness one other time in April 2010. Father was in agreement
that Paternal Grandmother should take custody of Child. On
May 26, 2010, Paternal Grandmother and Mother were appointed
temporary joint managing conservators, with Paternal
Grandmother being able to determine Child's residence.
Mother was given supervised visitation of Child with Maternal
Grandmother as the supervisor. Mother was also ordered to pay
child support and to seek psychological help.
Grandmother filed a motion to modify prior orders on June 25,
2010 claiming that Mother (1) had violated the court's
orders by not keeping Paternal Grandmother informed of her
current address and employment, (2) went within 100 yards of
Child's school, and (3) went within 100 yards of Paternal
Grandmother's business. Paternal Grandmother asked for
Mother's visitation to cease until further order of the
trial court, and after a hearing on the motion in which the
trial court deferred its ruling, the trial court added an
additional temporary order preventing Mother from texting or
calling Paternal Grandmother and Father or exercising visits
with Child until further order from the trial court. It
appears this was later amended and visitation between Mother
and Child resumed.
August 25, 2011, temporary orders were again modified by the
trial court naming Father a joint managing conservator with
primary care and Mother as temporary joint managing
conservator. Paternal Grandmother was dismissed as a party
from the case. Mother's visitation was to be supervised
by Father's current spouse, RB (Wife). Mother was ordered
to pay child support, continue treatment for mental illness,
and attend parenting classes.
January 10, 2012, after an alleged altercation between
Mother, Father, and Wife, Father filed a motion to modify
which asked to suspend Mother's visitation and possession
rights. In addition, Paternal Grandmother filed an amended
motion in intervention and requested to be appointed a joint
managing conservator in place of Mother. At the hearing on
January 18, 2012, the trial court appointed Father, Mother,
and Paternal Grandmother joint managing conservators of
Child. Mother was granted visitation to be supervised by Katy
Adams, a licensed professional counselor, ordered to pay
child support, and ordered to comply with the doctor's
recommendations for treating her mental illness.
all parties filed various motions to modify, with Mother
asking for standard visitation and Father and Paternal
Grandmother seeking enforcement of child support and
sanctions. On March 4, 2013, Father and Paternal Grandmother
were appointed joint managing conservators with Mother being
granted possessory conservatorship. Pursuant to modified
orders, Mother's visitation was to be supervised by
Angela Frost,  both parents were ordered to pay a portion
of Frost's supervision costs (Mother was to pay $70,
while Father was to pay $30 for each visit), and Mother was
ordered to pay Father child support.
early 2014, Father and Paternal Grandmother filed motions to
enforce the child support order, while Mother filed motions
to modify visitation and the current orders that were in
place. Mother filed a notice of nonsuit on November 12, 2014,
signed by her former counsel who withdrew that same day.
However, Mother's current counsel had filed a notice of
appearance in October 2014. In November 2014, a judgment for
the child support arrears was also granted by the trial court
April 2015, Mother again filed a motion to modify the current
orders. In June 2016, Father and Paternal Grandmother filed
their original petition to terminate parental rights,
claiming that Mother: (1) left Child with a non-parent with
no intent to return; (2) endangered the physical or emotional
well-being of Child; and (3) constructively abandoned Child,
and that termination was in Child's best interest.
See Tex. Fam. Code Ann. § 161.001(b)(1)(A),
(E), (N), & (b)(2). Through her counsel, Mother filed an
answer to the petition to terminate Mother's rights. In
January of 2017, the trial court held a bench trial on the
petition to terminate. The trial court found no abandonment
by Mother, but found that Mother had violated section (E) of
section 161.001(b)(1) and that termination of Mother's
parental rights was in the best interest of Child. See
id. (b)(1)(E) & (b)(2).
Trial on the Merits
the bench trial, Mother called Paternal Grandmother, who
testified that she does not want Child to have a relationship
with Mother and considered Wife to be Child's mother. She
also stated that Child has lived with Father since May 2011
and that Father is a wonderful parent. Paternal Grandmother
admitted that Father had a prior criminal history and had
attended drug and alcohol rehabilitation programs two times
in the past. Paternal Grandmother spoke of an incident where
Mother caused a disturbance at Paternal Grandmother's
business years prior, but admitted that Father had also
vandalized property at her business previously because he was
"sick" with his addictions and had been terminated
from his employment at her business. Paternal Grandmother
testified that Father currently works for her business and is
in a good place because of Wife. Paternal Grandmother also
felt that Mother had "too many opportunities, "
worked as an exotic dancer at multiple establishments in the
local area, posted troubling information on her social media
accounts, and had violent tendencies. Paternal Grandmother
admitted that she last spoke to Mother in December 2013 and
has no idea what Mother does anymore. She was also aware that
visitation with Adams was cost-prohibitive for Mother.
However, Paternal Grandmother stated Child sees Frost for
anxiety and the residual effect of Mother's "serial
abandonment" and believed all of Child's issues stem
next witness was Father. Father admitted to being fired in
early 2010 for breaking windows at his mother's business.
He stated he was reinstated for work in 2011 and currently
works at Paternal Grandmother's business in a management
role. Father believed that Paternal Grandmother liked Mother
when he and Mother were first married. Father testified that
Mother and Wife also got along well until an incident outside
a local sushi restaurant in 2012, where Mother threatened
Wife. Father stated he follows the court orders, has not
spoken to Mother since 2011 at a visitation with Adams, and
has not attempted contact with Mother since 2013. Father
testified to a prior DWI conviction, drug use including
cocaine, methamphetamines, steroids, alcohol, and
prescription medication, and to spending time at substance
abuse treatment facilities. He said in 2011 he turned his
life to God and "is on a better path." Father
admitted to a relapse with alcohol in 2012, when he was
experiencing marital discord with Wife. Father admitted that
Child was living with him when this relapse occurred, but
stated he left the home when he consumed alcohol.
called her sister ("Beth") as a witness. Beth
stated she visits Mother often and knows Mother misses Child.
Beth said Mother is a wonderful parent to her young son,
"Bob",  and that Mother had truly changed since
2010. Beth also testified regarding an assault that occurred
between herself and Mother in early 2013. Beth believed
Mother was "drugged" at an outing and that was the
cause of the violence between them. Beth testified the
assault occurred before Bob was born, and Beth refused to
family members and friends of Mother testified regarding her
parenting of Bob, although many of them had never met Child.
One witness testified that, even though he knew Mother's
history, he believed Mother had changed and stated it was
"time to re-establish" the relationship because
people can "heal and mature." Mother's cousin
"Claire" testified and stated that Mother had put
her issues behind her and talks about Child frequently.
Claire testified that after Maternal Grandfather was in a bad
automobile accident, the family became close and had been
together frequently. Mother's other cousin,
"Mia", stated that Mother was outstanding with Bob
and that Mother has a strong family who would
"embrace" Child if she was allowed to see Mother.
Mia testified that she was not aware of any court orders or
past psychiatric issues, but stated she assumed the
information Paternal Grandmother's attorney was referring
to was not as clear cut as it sounded.
Maternal Grandmother spoke of her close relationship with
Mother. She feels Mother is a wonderful parent and helps
babysit Bob when Mother needs assistance. The Maternal
Grandmother stated that she has not seen Child in over three
years and everyone in their family misses Child very much.
She feels it would be in Child's best interest to spend
time with Mother. On cross-examination, the Maternal
Grandmother stated she believes Father's family is not
allowing visits, she did not know about the prior non-suit
filed by Mother, and that the visitation with Child stopped
when Bob was born. The Maternal Grandmother testified about
how she was appointed to supervise visitation between Mother
and Child, but "things"-such as vandalism, property
being trashed, and being stalked-started happening around her
home after she was appointed by the trial court and she was
frightened, so she asked to be removed as the supervisor.
testified that she currently works doing data entry, but
formerly worked as an exotic dancer. Mother stated she is
current with her child support obligation to Child, and
although she has used drugs in the past, she no longer uses.
Mother testified that the last time she saw Child was
November 2013. Mother stated she showed up to the visitation
at Frost's office and Paternal Grandmother was there with
Wife. She was pregnant with Bob and felt intimidated by
Paternal Grandmother's presence because she believed
Paternal Grandmother has problems with her. Mother also
talked about her personal issues with Frost and a complaint
she filed against Frost with the state licensing board
because Frost appeared to be sleeping during the visitation
sessions. Additionally, Mother stated that Frost has
yelled at her in front of Child and allowed Child to be
dropped off late and picked up early from visitation,
depriving Mother of her full time with Child.
claimed her "soul was tortured not seeing [Child]."
She also testified that she had never been involved with
child protective services regarding Bob and the assault with
her sister, Beth, occurred before she was pregnant with Bob.
Mother said it hurt her that Paternal Grandmother considered
Wife to be Child's mother and Mother would have never
tried to cut Father out of Child's life. Mother believed
that there was no need for Paternal Grandmother to be a
conservator for Child anymore. Mother also testified that she
was seeing Dr. Raul Capitaine, a psychiatrist, for her mental
issues and took medication for the anxiety she suffered being
away from Child.
cross-examination, Paternal Grandmother's counsel
introduced tax returns and questioned Mother's income
stream. Mother stated that Bob's father assisted her with
bills when necessary. Regarding her erratic behavior, Mother
explained that in 2010, she was having a breakdown. Mother
admitted to going to Paternal Grandmother's place of
business and sending harassing voicemails to Father. Mother
stated she attended therapy twice a month and Alcoholics
Anonymous meetings following those incidents. Mother also
relayed that the altercation between Father, Wife, and
herself was in relation to Child telling Mother she was not
being fed. Mother testified that she did not visit Child for
six months when Adams was the appointed supervisor because
she could not afford the visitation fee and she stopped
visiting with Frost to avoid confrontations with Father's
family and Frost.
counsel questioned Mother regarding the 2014 motion to modify
she filed asking the trial court to remove Frost from
supervising visitation and her filing of the notice of
non-suit. Mother stated she was not aware of the non-suit and
hired her current counsel to get another hearing on her
motion to modify. Mother also admitted she was aware of the
court orders and the restrictions and stated that is why she
felt she could not be around Child. Mother stated she thought
calling or writing Child would violate the no-contact order
with Father's family and that she did not want to cause
trouble. Mother stated her only criminal conviction was for
obstruction of a highway, even though she was asked about an
incident in 2015, where a former friend tried to assault her
and the police were called. Mother explained her friend had
recently been released from prison and needed a place to
stay, so she tried to help her friend out. However, after the
incident, Mother evicted her friend.
Father and Paternal ...